Professor Gerry McCormack's Publications
European Insolvency Law Reform and Harmonisation ([n.pub.], 2017),
Critically analysing the substantive law of insolvency in the EU countries as a whole, this book carries out horizontal cross-cutting analysis of the data gathered from a study of national insolvency laws.
European Insolvency Law Reform and Harmonisation (Cheltenham UK: Edward Elgar, 2017),
Secured Credit and the Harmonisation of Law (Edward Elgar, 2011),
This is a very timely book that addresses an important subject, namely, attempts to harmonise the law governing secured transactions.
Corporate Rescue Law - An Anglo-American Perspective (Edward Elgar Publishing, 2008), 1-307,
This book offers and unprecedented and detailed comparative critique of Anglo-American corporate bankruptcy law. It challenges the standard characterisation that US law in the sphere of corporate bankruptcy is 'pro-debtor' and UK law is 'pro-creditor', and suggests that the traditional thesis is, at best, a potentially misleading over-simplification. I conclude that there is some functional convergence in practice, while acknowledging that corporate rescue, as distinct from business rescue, still plays a larger role in the US. The focus is on corporate restructurings with in-depth scrutiny of Chapter 11 of the US Bankruptcy Code and the UK Enterprise Act.
Secured Credit under English and American Law (Cambridge University Press, 2004), xii,424p,
‘Brexit and its implication for restructuring and corporate insolvency in the UK’, Journal of Business Law, 7 (2017), 533-556,
Repository URL: http://eprints.whiterose.ac.uk/123325/
This paper written jointly with a leading practitioner – Hamish Anderson of Norton Rose – addresses the potential implications of Brexit for cross-border insolvency and corporate restructuring in the UK, distinguishing between the scenarios whereby the UK ceases to be bound by Regulation 2015/848 with and without any replacement regime in place. The paper considers the existing UK law arrangements and considers some unilateral options for the UK, the EU and other Member States after the UK's withdrawal from the Regulation.
‘Corporate restructuring law: A second chance for Europe?’, European Law Review, 42.4 (2017), 532-561,
Repository URL: http://eprints.whiterose.ac.uk/117309/
© 2017 Thomson Reuters and Contributors. This article analyses critically the recent European Commission's Proposal for a new directive on corporate restructuring and a "second chance" for entrepreneurs. The article addresses the proposal in the context of the Capital Markets Union project and also broader international indicators such as Ch.11 of the US Bankruptcy Code. The article suggests that the proposal is Europe's answer to Ch.11 but is a work in progress rather than a fully finished product. It is also unwise to assume that if certain reforms are enacted, certain consequences will more or less automatically follow. Events in 2016 indicated that the direction of travel with the European project is not necessarily linear and one way.
‘Business restructuring law in Europe: Making a fresh start’, Journal of Corporate Law Studies, 17.1 (2017), 167-202,
DOI: 10.1080/14735970.2016.1242206, Repository URL: http://eprints.whiterose.ac.uk/105573/
© 2016 Informa UK Limited, trading as Taylor & Francis Group. This paper critically examines a new European approach to business failure and insolvency. It addresses the broader political dimensions of the subject and sets the new European approach in the context of the objectives of insolvency law to rescue viable businesses and to liquidate non-viable ones. The comparable US procedure – Chapter 11 of the Bankruptcy Code – is used as a reference point for detailed analysis. The paper suggests that the new approach is of particular importance and adds value in those EU Member States that have underdeveloped restructuring frameworks. It is also suggested however, that any measures of legislative harmonisation should be of the minimum harmonisation variety leaving scope for regulatory differentiation and allowing national governments to build on local restructuring frameworks and domestic business practices that work well.
‘US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective’, Legal Studies, 36.1 (2016), 136-162,
DOI: 10.1111/lest.12096, Repository URL: http://eprints.whiterose.ac.uk/87076/
© 2016 The Society of Legal Scholars. This paper addresses how the UNCITRAL Model Law on Cross-Border Insolvency has been implemented and interpreted in the US and the UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonisation and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with 'American exceptionalism' that they cannot be relied upon as sure guides in other countries.
‘Something Old, Something New: Recasting the European Insolvency Regulation’, Modern Law Review, 79.1 (2016), 121-146,
DOI: 10.1111/1468-2230.12169, Repository URL: http://eprints.whiterose.ac.uk/91886/
‘Australia and the International Insolvency Paradigm’, SYDNEY LAW REVIEW, 37.3 (2015), 389-416,
Repository URL: http://eprints.whiterose.ac.uk/88861/
‘Reforming the European Insolvency Regulation: A Legal and Policy Perspective’, Journal of Private International Law, 10.1 (2014), 41-67,
DOI: 10.5235/17441048.10.1.41, Repository URL: http://eprints.whiterose.ac.uk/91885/
This paper will critically evaluate the proposals for reform of the European Insolvency Regulation - regulation 1346/2000 - advanced by the European Commission. While criticised by some commentators as unsatisfactory, the Regulation – is widely understood to work in practice. The Commission proposals have been described as 'modest' and it is fair to say that they amount to a 'service' rather than a complete overhaul of the Regulation. The proposals will be considered under the following heads (1) General Philosophy; (2) Extension of the Regulation to cover pre-insolvency procedures; (3) Jurisdiction to open insolvency proceedings; (4) Co-ordination of main and secondary proceedings; (5) Groups of Companies; (6) Applicable law; (7) Publicity and improving the position of creditors. A final section concludes. The general message is that while there is much that is laudable in the Commission proposals, there is also much that has been missed out, particularly in the context of applicable law. The proposals reflect an approach that, in this particular area, progress is best achieved by a series of small steps rather than by a great leap forward. This is not necessarily an approach that is mirrored in other areas of European policy making.
‘Bankruptcy forum shopping: The UK and US as venues of choice for foreign companies’, International and Comparative Law Quarterly, 63.4 (2014), 815-842,
© 2014, Cambridge University Press. All rights reserved. This paper critically evaluates 'forum shopping' possibilities offered by the UK and US in bankruptcy/insolvency cases. While recognizing that in some quarters forum shopping has a bad name, the paper makes the point that strategic manoeuvring and transaction planning is what litigation and case management is all about. Certain countries are popular as forum shopping venues because of substantive law or the procedural advantages brought about by litigating in that country. The paper concludes that while the UK may have shut its doors too firmly against foreign forum shoppers, the US is too much a safe haven. The paper calls for a measure of jurisdictional restraint through raising entry barriers. While a bit of jurisdictional competition in insolvency law-making may be no bad thing, the US approach runs the risk of undermining important policies considered important by other countries such as the protection of employees and the public purse. It is also asymmetrical in that US bankruptcy jurisdiction is assumed in situations where, if foreign countries had acted on a similar basis, US recognition of the foreign proceedings would be denied.
‘Reconciling European conflicts and insolvency law’, European Business Organization Law Review, 15.3 (2014), 309-336,
© 2014 T.M.C.ASSER PRESS. Abstract This paper focuses critically on European conflicts and insolvency law - examining and evaluating the relationship between the Jurisdiction and Judgments Regulation and the Insolvency Regulation. The Regulations are founded on the notion of judicial cooperation in civil matters linked to maintaining and developing an area of freedom, security and justice. The paper asks whether these high-minded ideals have been achieved in practice. It also asks whether the recent recasting of the Jurisdiction and Judgments Regulation, and the proposals for revision of the Insolvency Regulation will improve the situation. The paper concludes that the ideals have not quite been achieved and the reform proposals provide only a partial solution.
‘Conflicts, avoidance and international insolvency 20 years on: a triple cocktail’, Journal of Business Law 2013, 141-159,
‘Universalism in insolvency proceedings and the common law’, Oxford Journal of Legal Studies, 32.2 (2012), 325-347,
This article critically examines the principle, articulated by Lord Hoffmann in leading cases, that universalism in insolvency proceedings is the golden thread of the common law. This principle suggests that there should be a unitary bankruptcy proceeding in a bankrupt's 'home' jurisdiction that applies universally to all the bankrupt's assets and which receives worldwide recognition. The article argues that the principle is not a practical reality in the common law and should not influence the interpretation of the international insolvency agreements to which the UK is a party. It suggests that the common law, instead of reflecting a universalist ideal, has steered a pragmatic middle course that owes more to realpolitik than to principle. This is not surprising given that vital national policies are often at stake in insolvency, and given the mishmash of sometimes competing principles at the heart of the subject such as encouraging the prompt payment of debts, adjustment of prior transactions, restoring the status quo ante, investigating past misconduct and debtor and business rehabilitation. © The Author 2012. Published by Oxford University Press. All rights reserved.
‘COMI and comity in UK and US insolvency law’, Law Quarterly Review, 128 (2012), 140-159,
A critical evaluation of the Model Law on Cross-Border Insolvency and the manner of its implementation in the UK and US, arguing that despite professed intentions, uniform implementation has not been achieved in practice nor has uniformity of interpretation. The latter goal was unrealistic, since the broad institutional and political dynamics in both the US and UK, including Britain's membership of the European Union and the appearance of the European Insolvency Regulation, were always likely to produce divergences of interpretation. Convergence and divergence across three important fronts are explored: "centre of main interests" (COMI) as the basis for recognising foreign main insolvency proceedings; protection of domestic creditors consequent upon recognition of foreign proceedings; and "additional assistance" that may be provided in relation to foreign proceedings. (Quotes from original text).
‘Time to Revise the Insolvency Regulation’, International Insolvency Law Review, 2 (2011), 121-130,
‘International harmonisation efforts before the UNCITRAL Legislative Guide’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 102-129,
‘National models and replication across international frontiers - Article 9 of the American Uniform Commercial Law and the English common law’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 80-101,
‘The Insolvency Legislative Guide’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 154-181,
‘The case for harmonising and modernising the law of international trade’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 28-53,
‘Secured Credit and the Harmonisation of Law The UNCITRAL Experience Conclusion’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 182-194,
‘The UNCITRAL Secured Transactions Guide’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 130-153,
‘Secured Credit and the Harmonisation of Law The UNCITRAL Experience Preface’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, VII-IX,
‘Secured Credit and the Harmonisation of Law The UNCITRAL Experience Introduction’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 1-27,
‘Harmonising and modernising secured transactions law’, SECURED CREDIT AND THE HARMONISATION OF LAW: THE UNCITRAL EXPERIENCE 2011, 54-79,
‘UNCITRAL, security rights and the globalisation of the US Article 9’, Northern Ireland Legal Quarterly, 62 (2011), 485-504,
‘American Private Law Writ Large?: The UNCITRAL Secured Transactions Guide’, International and Comparative Law Quarterly, 60 (2011), 597-625,
‘Reconstructing European Insolvency Law: Putting in Place a New Paradigm’, Legal Studies 2010, 126-146,
‘Convergence, Path-Dependency and Credit Securities: The Case against Europe-Wide Harmonisation’, Global Jurist, 10.2 (2010), 1-37,
‘Jurisdictional Competition and Forum Shopping in Insolvency Proceedings’, Cambridge Law Journal, 68 (2009), 169-197,
‘Rescuing Small Businesses: Designing an 'Efficient' Legal Regime’, Journal of Business Law 2009, 299-330,
‘The automatic stay - barring individual creditor enforcement actions’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 156-175,
‘Corporate Rescue Law - An Anglo-American Perspective Preface’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, VI-VII,
‘Corporate restructuring law in the UK’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 43-77,
‘Financing the debtor’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 176-208,
‘Entry routes and corporate control’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 118-155,
‘The restructuring plan’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 251-287,
‘Corporate Rescue Law - An Anglo-American Perspective Introduction’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 1-42,
‘Corporate Rescue Law - An Anglo-American Perspective Conclusion’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 288-307,
‘The role of employees’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 209-250,
‘Fundamental features of the US Chapter 11’, CORPORATE RESCUE LAW: AN ANGLO-AMERICAN PERSPECTIVE 2008, 78-117,
‘Corporate Rescue Law in Singapore and the Appropriateness of Chapter 11 of the US Bankruptcy Code as a Model’, Singapore Academy of Law, 20.Special issue (2008), 396-437,
‘Control and Corporate Rescue - An Anglo-American Evaluation’, International and Comparative Law Quarterly, 56.3 (2007), 515-551,
‘Super-priority New Financing and Corporate Rescue’, Journal of Business 2007, 701-732,
‘Swelling Corporate Assets: Changing What Is on the Menu?’, Journal of Corporate Law Studies, 6.1 (2006), 39-69,
‘The Law Commission Consultative Report on Company Security Interests: An Irreverent Riposte’, The Modern Law Review, 68.2 (2005), 286-309,
‘Lords Hoffman and Millett and the Shaping of Credit and Insolvency Law’, Lloyd's Maritime and Commercial Law Quarterly 2005, 491-514,
‘Personal Property Security Law Reform in Comparative Perspective - Antipodean Insights?’, Common Law World Review, 33 (2004), 3-34,
‘The Priority of Secured Credit: an Anglo-American Perspective’, Journal of Business Law, JUL (2003), 389-419,
‘Apples and Oranges? Corporate Rescue and Functional Convergence in the US and UK’, International Insolvency Review, 18, 109-134,
‘Fairness and efficiency in the law of guarantees’, in Consumer Credit, Debt and Investment in Europe ([n.pub.], 2012), 182-211,
© Cambridge University Press 2012. This chapter considers the law of surety guarantees and suggests that it fails to pass muster on both ‘efficiency’ and fairness grounds. While surety law has received attention from both the courts and law reformers in recent years it is still unsatisfactory. The chapter highlights certain anomalies and makes the case for reform. In pointing out incongruities, the chapter looks at the role of suretyship law as largely default law, which means that the relevant parties to the transaction are free to contract around the rules that would otherwise apply. This can be considered unsatisfactory because it opens up the possibility of contractual ‘overkill’ in the shape of widely drafted clauses that extend liability. Such provisions do not appear to be subject to control under the Unfair Contract Terms Act 1977 (UCTA) or the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), though the High Court decision in Barclays Bank v. Kufner suggests otherwise. The chapter also considers the role of taxonomy in judicial discourse. Categorisation exercises have been particularly influential in the law of guarantees but the chapter makes the case for a more nuanced approach that may be able to respond better to the subtleties of the situation. Too often the law may be presented in dichotomous terms, preventing a more layered and deeper understanding. The chapter consists of five parts. The first part examines more closely what is meant by the concept of efficiency and then relates this to issues of taxonomy. The second part looks at suretyship law as default law and considers the functions served by default rules. The third part looks at three situations highlighting the operation of suretyship law as a series of default rules and considers how contractual exclusions of the default rules weaken, if not entirely eliminate, the prospects of the law meeting its objectives. The fourth part looks at statutory protection for guarantors and the final part then concludes and summarises the discussion.
‘Convergence, path-dependency and credit securities: The case against europe-wide harmonisation’, in Theory and Practice of Harmonisation ([n.pub.], 2012), 352-392,
‘Secured transactions law reform, UNCITRAL and the export of foreign legal models’, in Availability of Credit and Secured Transactions in a Time of Crisis ([n.pub.], 2011), 33-60,
© Cambridge University Press 2013. UNCITRAL, the United Nations Commission on International Trade Law, has produced a Legislative Guide on secured transactions, or secured credit law, as it is variously called. The Guide follows the broad contours of Article 9 of the United States Uniform Commercial Code, though it is not an exact copy. It aims to harmonize and modernize the law of secured credit across the globe. In UNCITRAL’s view, the Legislative Guide will aid the growth of individual businesses and also general economic prosperity. Harmonization and ‘modernization’ are assumed to equal ‘liberal’ security regimes and the facilitation of secured credit. In this chapter, the modernization equals liberalization agenda is subjected to greater scrutiny. UNCITRAL is not the only international organization working on the design of an ‘efficient’ legal regime for secured transactions. For example, the European Bank for Reconstruction and Development (EBRD) in 1994 and the Organization of American States (OAS) in 2002 have both produced Model Laws and done follow-up work of greater or lesser intensity. The World Bank has formulated principles for ‘Effective Insolvency and Creditors Rights System’ (revised in 2005) and has also produced a series of reports designed to evaluate the ease of doing business across the globe. As part of the evaluation process, the Doing Business reports have made use of a ten-point template measuring the degree to which secured credit and bankruptcy laws in particular jurisdictions ‘protect the rights of borrowers and lenders’ and thus facilitate secured lending.
‘Pressured by the paradigm: the Law Commission and company security interests’, in The Reform of UK Personal Property Security Law (London: Routledge Cavendish, 2010), 83-116,
‘Boyle and Birds' Company Law (7th edition 2009)’, in Boyle and Birds' Company Law, ed. by Birds J, 7th (Bristol: Jordan Publishing Ltd, 2009), 811-927,
‘The CFR and Credit Securities – A Suitable Case for Treatment?’, in European Private Law Beyond the Common Frame of Reference, ed. by Vacquer A (Amsterdam: Europa Law Publishing, 2008), 99-129,
‘Protection of Surety Guarantors in England - Prophylactics and Procedure’, in Protection of Non-Professional Sureties in Europe: Formal and Substantive Disparity, ed. by Ciacchi AC (Baden-Baden Germany: Nomos Publishing, 2007), 153-184,
‘Reform’, in Secured Finance Transactions: Key Assets and Emerging Markets, ed. by Ali P (London: Globe Law and Business, 2007), 41-56,
‘The UNCITRAL Legislative Guide on Secured Transactions – Functionalism and Form’, ed. by Foex B, Thevenoz L and Bazinas S (Geneva: Schulthess, 2007), 43-62,
Commercial Property Agents and Conflicts of Interest, ([n.pub.], 2016),
Repository URL: http://eprints.whiterose.ac.uk/97720/